Watson v Grenfell - [2006] WADC 176

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WATSON -v- GRENFELL & ANOR [2006] WADC 176

CORAM: COMMISSIONER SCHOOMBEE

HEARD: 21-22 AUGUST 2006

DELIVERED : 14 NOVEMBER 2006

FILE NO/S: CIV 2909 of 2000

BETWEEN: BRUCE KIMBERLEY WATSON
Plaintiff
AND
NATHAN ROBERT GRENFELL
First Defendant
SHIRE OF BUSSELTON
Second Defendant

Catchwords:

Tort - Duty of care of local authority - Pedestrian crossing at road works - Narrowness of roadway - Duty of care of driver of motor vehicle - Causation - Contributory negligence - Apportionment

Legislation:

Nil

Result:

Judgment for the plaintiff
Contributory negligence 20 per cent

Apportionment between defendants:
First Defendant 40 per cent
Second Defendant 60 per cent

Representation:

Counsel:

Plaintiff:     Mr K S Pratt
First Defendant              :     Mr G P Bourhill
Second Defendant         :     Mr J Eller

Solicitors:

Plaintiff:     Stephen Browne
First Defendant              :     Lavan Legal
Second Defendant         :     John Eller

Case(s) referred to in judgment(s):

Alexander v Manley (2004) 29 WAR 194
Bold v Reed [2005] WASCA 165
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Commissioner of Railways (Qld) v Ruprecht (1979) 142 CLR 563
Czatyrko v Edith Cowan University (2005) 79 ALJR 839
Derrick v Cheung (2001) 181 ALR 301
Jones v Bartlett (2000) 176 ALR 137
Joslyn v Berryman (2003) 77 ALJR 1233
Laybutt v Glover Gibbs Pty Ltd t/as Balfours NSW Pty Ltd [2005] HCA 56
Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666
Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292
March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506
Nettleship v Weston [1971] 2 QB 691
Pennington v Norris (1956) 96 CLR 10
Pledge v Roads & Traffic Authority (2004) 78 ALJR 572
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Restifio v Bernstein (1996) 23 MVR 347
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Schieb v Abbott (1999) 27 MVR 285
Stocks v Baldwin (1996) 24 MVR 416
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Teubner v Humble (1963) 108 CLR 491
Walker v McCall (1995) 20 MVR 146
Weal v Bottom (1966) 40 ALJR 436
Wyong Shire Council v Shirt (1980) 146 CLR 40
Yu v Yu (1998) 26 MVR 509

Case(s) also cited:

Campbelltown City Council v Bussell [2002] NSWCA 410
Calvert v Shire of Gingin [2004] WADC 1
Dowthwaite Holdings pty Ltd v Saliba & Anor [2006] WASCA 72
Pearse v Strahan, unreported; DCt of WA; Library No 4417; 24 April 1995

COMMISSIONER SCHOOMBEE: The plaintiff, who was a 38 year old accountant at the time, was struck by an oncoming vehicle driven by the first defendant when the plaintiff attempted to cross Naturaliste Terrace in Dunsborough, Western Australia. The accident occurred on 5 November 1999, a Friday afternoon, at about 5.15 pm. At the time the second defendant was carrying out major road works to Naturaliste Terrace. The road works took place on a section of Naturaliste Terrace between the intersection of Dunn Bay Road and Naturaliste Terrace at the southern end and a laneway at the end of a set of shops on the eastern side of Naturaliste Terrace at the northern end. The shops on the eastern side included, among others, a bakery and a health food store. Directly across Naturaliste Terrace on its western side was another set of shops comprising, among others, a hardware store at the northern end and a Caltex garage at the southern end.
The road works involved the construction of a traffic circle at the intersection of Dunn Bay Road and Naturaliste Terrace and the creation of parking on either side and in the middle of Naturaliste Terrace. On the day of the accident the second defendant was carrying out some hot mixing in front of the set of shops on the western side of Naturaliste Terrace. It had barricaded off the area in front of the Caltex garage right down to the hardware store by erecting barriers consisting of a metal plate with bright yellow and black stripes supported on triangular trestles on either side of the metal plate. A number of these barriers had been placed in a line parallel to the road and the trestles had been stabilised with sandbags. A similar set of barriers had been erected on the eastern side of Naturaliste Terrace in front of the bakery and the health food store, but leaving a gap at approximately the middle of the set of barriers which allowed cars to enter into the parking area in front of the bakery and the health food store. As no hot mixing was being carried out at the time of the accident in this area, the parking area was still available to be used.
On the day of the accident the plaintiff was on his way to visit Mr Peter Baxter who owned the Dunsborough hardware store and was a client of the plaintiff. The plaintiff had arrived by car from Bunbury and had driven down Naturaliste Terrace in a northerly direction, past the intersection with Dunn Bay Road, and had turned right into the gap in the line of barriers allowing him to park his car in front of the health food store. After getting out of his car the plaintiff had to cross Naturaliste Terrace in order to get to the hardware store. He walked from his car in a southerly direction towards the gap between the barriers where he waited to cross Naturaliste Terrace. The plaintiff observed a car coming from the south, as well as the first defendant's car coming from the north. The plaintiff carried some bound files, his diary and an envelope with loose papers. The envelope had its flap closed but not glued down. The plaintiff's mobile phone was balanced on top of the stack of files, envelope and diary that he was carrying.
The plaintiff says that he was waiting next to the last barrier on the northern side of the gap for both cars to pass when his mobile phone started slipping. It was a very windy day and as the plaintiff tried to prevent his mobile phone from falling to the ground and his files and diary from following suit he says he may have shuffled forward and stepped approximately half a metre into the roadway. It was then that he was struck by the first defendant's vehicle coming from his right.
The plaintiff gave evidence that he was first hit on the right knee and forearm and that the tyre of the car then ran over his left ankle. The plaintiff said that there appeared to be tyre marks on the lower part of his left leg. The plaintiff staggered and tried to regain his balance, but then fell to the ground more or less where he had been standing with his head towards the shops and his feet towards the set of barriers.
According to the plaintiff's statement of claim he suffered an ankle fracture which required surgery and a soft tissue injury to the lower back as a result of the collision. The parties had agreed that the trial be limited to the issue of liability and apportionment and thus this court is not concerned to determine the issue of quantum.

The pleadings

The plaintiff alleges in his statement of claim that the first defendant was negligent because he failed to keep a proper lookout, failed to travel at a speed that was safe in the circumstances and travelled too close to the barriers. As regards the second defendant, the plaintiff alleges that it was negligent in that it configured the barriers in such a way as to expose pedestrians to the risk of injury, failed to warn pedestrians to keep a safe distance from the carriageway formed by the barriers and failed to detour traffic away from the area where the road works were being carried out.
The defendants both deny the allegations and plead that the plaintiff contributed to the loss or damage suffered by his own negligence. The first defendant says that the plaintiff failed to keep a proper lookout and failed to take adequate precautions when crossing the road. The second defendant alleges that the plaintiff dropped his briefcase and bent down to retrieve it, losing concentration on the approaching vehicle and failed to pay due care and attention to his manner of crossing the road where it was patently obvious that works were in progress and extra vigilance was required.
The first defendant has filed a notice of contribution pursuant to s 7 of the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 against the second defendant pleading essentially the same grounds of negligence that the plaintiff has alleged against the second defendant.
The second defendant has also filed a notice of contribution pursuant to s 7 of the Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 against the first defendant alleging that the first defendant was negligent by driving at a speed and in a manner which was in all the circumstances dangerous and failed to keep a proper lookout for pedestrians immediately before the plaintiff's accident.

The plaintiff’s evidence

I accept the plaintiff's evidence which has been summarised above as it was given in a straightforward manner without embellishment or any reluctance to make concessions. The plaintiff conceded that he may have shuffled forward and that he may have strayed into the carriageway just prior to being struck by the first defendant's vehicle.
I accept the plaintiff's evidence with the proviso that he does not have a good recollection of exactly where the collision happened. At the trial he said that he had walked to the gap between the barriers and waited there to cross over to the other side of Naturaliste Terrace. However, he admitted that he had previously indicated on two photographs of the scene that he had been standing in a smaller opening between the individual barriers more or less in front of his car and two barriers away from the gap where vehicles could enter the parking area. He agreed that the markings on the photographs together with his description of the markings as the position where he was standing just prior to the accident were provided by him in about 1999. The plaintiff said in evidence that he had been uncertain for a long time as to exactly how he was struck and that having spoken to some of the witnesses, this was "cleared up" for him.
I accordingly do not rely on the plaintiff's evidence for any finding as to where the plaintiff had been standing just prior to the accident and where exactly he was when struck by the first defendant's vehicle. I prefer to rely in this regard on the evidence by an independent witness, Mr Peter Baxter, and on the plaintiff's report to the police made shortly after the accident.
The plaintiff said that he had estimated the double carriageway to be 5 metres or less. I accept that the plaintiff was in a position to make an estimate of the width of the double carriageway between the two sets of barriers, as he drove down that roadway before turning right into the gap to park his car. I also accept that the plaintiff did not see any signs indicating that he was not meant to cross the roadway at the gap between the barriers or showing that pedestrians should cross at either end of the two sets of barriers.
Counsel for the second defendant put two medical reports to the plaintiff in which the author of the reports, Ms Koula Pratsis, orthopaedic surgeon, reports that the plaintiff was trying to catch, or clip together, some pieces of paper that he had collected after they had blown away by the wind when he was struck by the vehicle. The reports by Ms Pratsis were tendered by consent. However, I do not attach any value to these reports, as the statements regarding the plaintiff's actions just prior to the accident are hearsay. Even if they could be considered to be an admission by the plaintiff, Ms Pratsis was not called to explain the procedure by which she recorded the plaintiff's information given to her. Further, one of the reports clearly contains an incorrect recount of the events, as it states that a car struck the plaintiff "from the left side".
It was also put to the plaintiff that he had bent down on one knee in the process of grappling with his mobile phone. The plaintiff said that it was possible that he had done so, although he did not believe it likely. I am of the view that not much hinges on the question whether the plaintiff bent down into a crouching position or not.

The evidence of Mr Baxter

Mr Baxter gave evidence that he was working in his hardware store on the western side of Naturaliste Terrace on the day of the accident. During the course of the day he observed the second defendant's activities of hot mixing the proposed parking area in front of his store. Just after he had closed his store at approximately 5:15 pm Mr Quentin Forman, who has since passed away, came to inform him that the plaintiff had been hit by a motor vehicle.
Mr Baxter gave evidence that he found the plaintiff lying in the gap between the barriers "where the motor vehicles could go through". He was lying on the northern end of the gap about 1.5 metres inside the line of barriers, in other words inside the parking area. The plaintiff's head was closest to the barriers and his feet nearer to the shops.
After attending to the plaintiff Mr Baxter overheard a conversation being carried on between Senior Constable Metcher and the first defendant and heard the first defendant say "I didn't see Bruce. I didn't see him".
Mr Baxter returned to the scene the next morning at approximately 7:00 am and took photographs of the two sets of barriers in Naturaliste Terrace. These photographs became Exhibits 1, 2 and 3 in the proceedings. Mr Baxter said that when he arrived the next morning to take the photographs the set of barriers on the western side of Naturaliste Terrace had been moved backwards closer to his hardware store and the other shops on that side of the road. He stated that the barriers had been moved onto the area which had been hot mixed the day before. He was not certain whether the set of barriers on the eastern side of Naturaliste Terrace had been moved, but said that he did not think so, as the parking in front of the health food store and the bakery had been in use on the previous day.
Mr Baxter gave evidence that he estimated the dual carriageway to have been between 4.5 and 5 metres wide. In cross‑examination he conceded that it may have been wider than 5 metres, but said that he had been in the building industry all his life and had a fairly good idea of measurements. He also said that on the day of the accident he had observed pedestrians crossing the road between the individual barriers and that it looked like some of the barriers had been moved because they were not aligned in a straight line. He stated that the openings between the individual barriers had been enough for a person to pass between the barriers without having to squeeze through and pointed to the photographs which show substantial gaps between the individual barriers on both sides of the dual carriageway.
Mr Baxter said that he took the photographs because he thought that the dual carriageway had been too narrow and that it would be helpful to show afterwards how the roadway was configured. Unfortunately, when he took the photographs on the day after the accident, the barricades had been removed from their exact position on the previous day.
Mr Baxter gave evidence that it was a very windy day with the wind blowing at least 20 knots. He said that bystanders handed him some of the financial documents pertaining to his business which the plaintiff had brought along and which had "blown to the four winds". Further papers were found the following day in a nearby creek.
I accept the evidence given by Mr Baxter. The evidence was given in a forthright manner and Mr Baxter was prepared to make concessions such as the statement relating to the width of the carriageway. Although he had a professional relationship with the plaintiff at the time of the accident, there was no indication that he might have tailored his evidence to support the plaintiff's case. He agreed that he had discussed the accident with the plaintiff when he provided the photographs to him. He said that he was not aware that the plaintiff had thought that he had been standing between the individual barriers just prior to the accident.

Evidence of Senior Constable Metcher

Senior Constable Metcher gave evidence that at the time of the accident she was the relieving officer in charge at the Dunsborough Police Station. Although off duty at the time, she was called to the scene of the accident in Naturaliste Terrace. She did not take a statement from the plaintiff or the first defendant at the time. She said that the first defendant told her that he had pulled out of the parking area in front of the Dunsborough Galleries, which was approximately 100 metres from the point of impact, turned onto Naturaliste Terrace and by the time that he had straightened his car out after the turn, the plaintiff was "just there".
Senior Constable Metcher gave evidence that the double carriageway was very narrow, approximately 5 metres or just under. She said that she had observed that the barriers appeared to have been "jostled around" as they were not in perfectly straight lines. She did not notice any signage indicating to pedestrians where to cross the road and there was "no actual channel" for pedestrians to cross to the other side of the road.
Senior Constable Metcher said that it was a very busy time at about 5:00 pm on the day of the accident, as the shops were shutting and people were heading home from work. She indicated that the amount of vehicular and pedestrian traffic was reasonably heavy on that night, as she said the following:
"Given the amount of traffic that was on it and the amount of people in the area, the ideal probably would have been to have blocked the traffic off completely".
Counsel for the second defendant tendered by consent the Report of Road Traffic Crash, dated 17 November 1999, which, according to Senior Constable Metcher, was completed by the plaintiff at the police station and signed by him in her presence. The report and its contents had not been put to the plaintiff. In fact, on the face of the document the report does not appear to contain the plaintiff's signature, although the document tendered is a copy of the original and the open space next to the word "signature" appears to have been obscured with whiteout prior to the document being copied. Similarly the space next to the words "police witness signature" has been obscured and the police witness is only identified by the number 8362. Senior Constable Metcher gave evidence that this was her number.
Counsel for the second defendant tendered this report in order to put before the court the plaintiff's statement that he was "in the process of straightening up" after having focussed his attention on saving the mobile phone, when he was struck by the vehicle. However, the report also contains a drawing which indicates a stick figure standing on the eastern side of Naturaliste Terrace to the left of a set of temporary barriers with no further barriers being shown to the left of the stick figure. I accept on the basis of Senior Constable Metcher's evidence that the plaintiff made this drawing as part of completing the report at the police station and I also rely on this report in identifying the exact position where the plaintiff was standing just prior to the accident.

Evidence by Mr Klyne

The last witness called by the plaintiff was Mr Klyne who is a principal of Klyne Consultants Pty Ltd, a company specialising in traffic, town planning and transportation. Mr Klyne has an associateship in civil engineering, a post graduate diploma in town and regional planning and a master of applied science in traffic and transportation. He gave evidence of his extensive experience in working in the engineering and planning of traffic management and the various associations and committees of which he is a member. Mr Klyne is well qualified as an expert on traffic management, but was not asked to express his opinion with regard to the reasonableness of the measures adopted by the second defendant to control the vehicular and pedestrian traffic through and around the road works on the day of the accident.

Mr Klyne produced a report in which he said that the applicable Australian Standard at the time was AS1742.3-1996 and that Part 3 dealing with "traffic control devices for works on roads" was applicable to the circumstances existing in Naturaliste Terrace on the day of the accident. Clause 2.3.3 of this Standard provides that passage of traffic through a work area shall only be permitted where both the traffic and the work can be adequately controlled. Clause 2.2.2 of the Standard deals with planning procedure and provides as follows:
"2.2.2Planning Procedure       Planning at all levels requires a procedure to be followed whereby all essential aspects of the plan are considered in an ordered way. The following matters shall be considered in turn and incorporated into the plan if relevant:
(a)Traffic demand     Determination of the capacity required to accommodate traffic demand at an acceptable level of service and convenience to road users. From this is determined the amount of road space which must remain open and where applicable, the times of day during which greater amounts of road space are needed, eg urban peak periods (see clause 4.9).
(b)Traffic routing      Selection of the appropriate means of routing traffic at the site, i.e through, around or past the site or a combination of these (see clause 4.19), and ensuring that all required traffic movements are provided for.
(c)Traffic control       Determination of the need for traffic control, i.e by traffic controller, traffic signals (portable or permanent), police or other means.
(d)Other road users Determination of the need to make provisions for road users other than vehicular traffic, including:
(i)Pedestrians, including people with disabilities where appropriate.
(ii)Bicycles.
(iii)School Children.
(iv)Emergency Vehicles.
(e)Special vehicle requirements        Determination of the need to provide for vehicles such as:
(i)Buses, including stops and terminals.
(ii)Over-dimensional vehicles."
Clause 2.3.7 of AS1742.3–1996 is also relevant and provides as follows:
"2.3.7 Provision for pedestrians and bicycles
Where pedestrians including people with disabilities have to move through or past a work site or to cross the road within a work site, they shall be provided with and directed to suitably constructed and protected temporary footpaths and crossing points, or formal pedestrian crossings, or refuges if warranted. Such facilities shall meet the requirements of Clause 2.3.8 …"
Clause 2.3.8 provides as follows:
"2.3.8Temporary footpaths and pedestrian crossing
Where footpaths or pedestrian crossings have been temporarily relocated, requirements and recommendations for the temporary facilities are as follows:
(a)The width should be not less than 2m with an absolute minimum of 1.2m at local constrictions.
(b)Surfacing shall provide for prams, strollers and wheelchairs.
(c)Lighting shall be not less than the level provided on the original footpath or crossing. Lighting to AS 1158.4 shall be provided if the associated works reduce either the sight distance to, or the prominence of, the crossing.
(d)Crossings shall be located as near as practicable to established pedestrian routes.
(e)Crossings should be signalized if the crossings they replace were signalized."
Clause 4.9.3 of the Standard deals with work in residential streets and provides as follows:
"4.9.3Work in residential streets Where work is in residential streets, the following should be observed:
(a)If the remaining clear roadway width is 5.5m or more, two-way operation should be maintained. If 5.5m cannot be maintained, the width should be reduced to a maximum of 3.5m to ensure vehicles operate in single file under shuttle working conditions.
(b)The normal method of traffic operation for shuttle working will be a natural ‘give and take’, provided that there is clear visibility of and through the work area for 100m, and the length of shuttle lane does not exceed 60m.
If these conditions cannot be maintained some form of traffic control will be required.
(c)The length of the approach taper should be approximately 15m where two-way operation is maintained. Where shuttle working under natural give and take is in operation, the tape should be at 45 degrees on both the approach and departure sides of the works."
The report by Mr Klyne states that pursuant to regulation 301(2) of the Road Traffic Code 1975, the Commissioner for Main Roads has granted the Shire of Busselton authority to "erect, establish and display traffic signs and traffic control signals for road works" by way of an instrument of authorisation signed by the Shire of Busselton on 2 February 1996. This instrument of authorisation was not put into evidence, but the reliance by Mr Klyne on this document in his report was not challenged as hearsay evidence by any of the defendants.
Mr Klyne explained in evidence that clause 4.9.3 of AS1742.3-1996 requires that a double carriageway in a residential area should have a minimum width of 5.5 metres. He said that the maximum width of a vehicle was 2.5 metres and that 3 metres space had to be maintained in addition to the width of a vehicle for two vehicles to pass each other safely. He agreed that if a dual carriageway was less than 5 metres wide and enclosed by barriers, a vehicle travelling in either direction would have to drive very close to the barriers if another vehicle was approaching from the opposite direction.
Mr Klyne gave evidence that the 1996 Australian Standard only provided a minimum width for roadways in residential streets, but that this requirement was the minimum standard for all roads by reason of the fact that residential streets usually do not carry a large number of commercial vehicles and trucks.
Mr Klyne did not express any opinion with regard to the reasonableness and suitability of the traffic flow and control arrangements made by the second defendant in respect of the road works carried out in Naturaliste Terrace on the day of the accident.

Evidence of first defendant – Mr Nathan Grenfell

The first defendant is a cabinetmaker employed by Dunsborough Galleries. He gave evidence that Dunsborough Galleries is situated on a side street intersecting with Naturaliste Terrace just north of the area where the road works were carried out on the day of the accident. He left work at about 5:00 pm and turned right from the side street into Naturaliste Terrace. He said that he had been driving about 50 metres down Naturalise Terrace and at a speed of approximately 25 kilometres, maximum 30 kilometres, when he saw the plaintiff.
The first defendant said that he first saw the plaintiff on the eastern side of Naturaliste Terrace as he was walking towards the left hand side of the double carriageway carrying some bundles high up and close to his chest. The plaintiff was looking away from him, towards the plaintiff's left and just kept on walking. The first defendant said that he had only time to slightly swerve his car, but collided with the plaintiff on the left front side of his car. He said that the plaintiff brushed the side mirror and aerial of his car and that his vehicle ran over the plaintiff's foot. He saw the plaintiff staggering back, trying to stand up, but then the plaintiff fell down.
The first defendant said that he brought his vehicle to a standstill within 2 to 3 metres, in the middle of the road, and that he thereafter moved his vehicle off the road into the parking area in front of the bakery and health food store through the gap between the barriers. It was not necessary for him to reverse in order to turn into the gap between the barriers.
The first defendant gave evidence that when he got out of the car and talked to the plaintiff, the plaintiff said "it wasn't your fault" in response to the first defendant telling him "sorry, mate, I sort of didn't see you".
The first defendant said that he was probably only a couple of metres away from the point of collision when he first saw the plaintiff and that the plaintiff was walking at that time. Although he said that he had been driving about 50 metres along Naturaliste Terrace, he could not explain why he did not see the plaintiff on an earlier occasion. He suggested that a car might have been in front of him which had turned into the car park. However, the allegation that there was another car in front of the first defendant was not put to the plaintiff. The first defendant also said that it was busy on the Friday night at 5:00 pm and that there were many people and cars in the vicinity.
The first defendant gave evidence that when he first saw the plaintiff the plaintiff was about 1.5 to 2 metres to the left of the barriers and walking into the roadway without looking in the first defendant's direction. The first defendant said that he did not brake, but instinctively swerved, as he thought he would hit the plaintiff head on if he braked but did not swerve. He agreed in cross‑examination that he had to drive very close to the barriers, as the carriageway was so narrow and a vehicle was coming from the front. He said that he could not have swerved further into the road because of the approaching vehicle. It was not clear from the first defendant's evidence how far the approaching vehicle was from the first defendant's vehicle immediately prior to the collision.
The first defendant’s recollection was that the plaintiff did not emerge from the gap between the barriers, but from an opening between two barriers closer to the northern end of Naturaliste Terrace. The first defendant said that the plaintiff had stepped approximately half a metre onto the roadway when the collision occurred.
I do not accept the first defendant's evidence that when he first saw the plaintiff in a position 1.5 to 2 metres on the car park side of the barriers, the plaintiff was walking straight out onto the road and emerging from an opening between two of the barriers. This is contrary to the evidence of the plaintiff who said that he was standing still in line with the barriers and it was only in the last seconds before the accident that he may have stumbled forward. The first defendant's version is also contrary to the probabilities. It is unlikely that a pedestrian would walk straight through a small opening in a line of barriers without even stopping or turning his head momentarily to both sides of the road.
Further, if the first defendant only saw the plaintiff when his vehicle was approximately 2 metres away from the point of collision, he would not have had time to observe the plaintiff take what must have been at least three steps to walk into the roadway. In addition, if the first defendant had indeed seen the plaintiff approach the roadway with his head turned away from the first defendant's oncoming vehicle, it is likely that the first defendant would have applied his brakes. The fact that the first defendant did not operate his brakes but only swerved a little, supports in my view a finding that the first defendant only saw the plaintiff at the very last moment and could do nothing but instinctively swerve a little.
A finding that the first defendant only saw the plaintiff at the very last moment also accords with his statement made, on his own admission, to the plaintiff immediately after the collision when he said "sorry, mate, I sort of didn't see you". Further, the fact that the first defendant still hit the plaintiff on the left front of his vehicle indicates that he must have swerved very little, if the plaintiff was only half a metre into the roadway.

Evidence by Mr Read

Mr Read is currently a works co-ordinator for the Shire of Busselton and was called as a witness on behalf of the second defendant. At the time of the accident he was a worker for the Shire of Busselton and co‑ordinated the road works which took place in Naturaliste Terrace. He said that he was not engaged as a co‑ordinator at the time, but because he was the most senior worker on that particular job he told the other workers how to arrange the barriers to allow for traffic and he inspected what they had done. He agreed that on the day of the accident he and his co-workers were hot mixing the parking area in front of the hardware store up to the Caltex garage.
Mr Read gave evidence that in 1999 it was not practice to produce a traffic management plan for road works. The workers on a particular job would design the traffic flow in relation to the road works from day to day. It was put to Mr Read that a number of witnesses had testified that the dual carriageway between the barriers was 5 metres or less. Mr Read replied that he would have allowed for a minimum of 3.1 lanes, which equated to 6.2 metres, as this is what "we would have done in those days". He said he would not have used a measuring tape, but would have just stepped out the distance.
He could not recall setting up the barriers, but said that he would have done so. He said that he could not remember moving the barriers after the accident, but that if they had been moved, they were likely to have been moved that same evening, as the next day was a Saturday when he and his co‑workers did not work.
Mr Read further gave evidence that at the start and end of the road works there would have been a sign "pedestrians, watch your step" on strategic places on the footpath. He said that he was presuming that there would have been further signs indicating to pedestrians where to cross the road at the northern and southern end of the road works. The signs at the southern end would have been at the intersection of Dunn Bay Road with Naturaliste Terrace and at the northern end where a ramp in the sidewalk is visible on one of the photographs, Exhibit 2. The ramp is at the northern end of the set of shops on the eastern side of Naturaliste Terrace and appears on the photograph to be more or less opposite the end of the set of barriers.
Mr Read confirmed that pedestrians had been moving the barriers in order to cross the road, and said that he and his co‑workers were there to stop that from happening. He agreed that on the photographs, Exhibits 2 and 3, there was no sign to be seen which indicated to pedestrians that they should not cross the road where the road works were being carried out. He stated that there were no warning signs at the gap in the barriers, because the barriers were a sign in themselves telling pedestrians not to cross the road where the barriers were situated. He said that on the other side of the road hot mixing was being carried out and any pedestrian walking over to that area would have gotten hot tar on his or her shoes.
Mr Read gave evidence that at the time of the accident he and his co‑workers were working in the area in front of the Caltex garage at the south western end of the road works. He could not recall what he was busy doing, but he saw the plaintiff walking from the western side of Naturaliste Terrace to the eastern side with his back to him. He saw him take two or three steps and then bend down to pick up something, when he was struck by the first defendant's vehicle. Mr Read said that from his vantage point he could not see the plaintiff at the exact point of collision because of the barriers and the vehicle. He was of the view that the first defendant had not swerved his vehicle.
I accept that Mr Read tried to give the best evidence that he could after the passage of such a long time, but I do not find his evidence very helpful. This is mainly because he did not seem to have any independent recollection of how the barriers were configured on the day of the accident and whether there were any signs indicating where pedestrians should cross and where exactly the signs had been positioned. His whole evidence was given on the basis that this is what he would have done in 1999.
I do not consider the evidence given by Mr Read of what he would have done sufficient to make a finding that the barriers were in fact set up in a manner which allowed 6.2 metres of dual carriageway or that signs had been placed at either end of the road works telling pedestrians to cross the road at those points. Mr Read did not give evidence that there was a standard practice to do these things which was hardly ever deviated from or that there was a set of instructions to that effect which he always followed.
He said that he would never have made the carriageway only 5 metres wide, because it was not safe enough. On the other hand he said that there were many roads in the Shire of Busselton that were only 5 metres wide and cars passed each other with no problem at all. He said it depended on the speed limit and the setting. It appears from this comment that Mr Read may very well have set up the double carriageway at under 6.2 metres and more in line with the estimate of 5 metres which was made by the other witnesses.
I certainly do not accept Mr Read's evidence that the dual carriageway was probably 6.2 metres wide, which is the width of 3.1 lanes. This is totally contrary to the evidence of the plaintiff, Mr Baxter and Senior Constable Metcher who were all concerned about the narrowness of the dual carriageway.
I accept that the plaintiff may have had a motive to say that the carriageway was only 5 metres or under, but Mr Baxter also made this estimate and gave evidence that it was his view that the carriageway was too narrow and that this prompted him to take the photographs on the next day. In addition, there is the independent evidence of Senior Constable Metcher who also estimated the width of the double carriageway to have been 4.5 to 5 metres and said that the carriageway "was very narrow, it was very messy".
The statements of lay witnesses regarding speed, temperature or the identity of persons which are evidence of a mixture of fact and inference are not regarded as opinion evidence and are admissible: Weal v Bottom (1966) 40 ALJR 436 at 438, Restifio v Bernstein (1996) 23 MVR 347 at 354 and Cross On Evidence, Australian Edition, par 29090.
Whereas the evidence of the width of the dual carriageway by the plaintiff, Mr Baxter and Senior Constable Metcher is based on estimates only, the fact that two independent witnesses make the same estimate and both say that the roadway was noticeably narrow for a dual carriageway, is in my view sufficient evidence to accept that the dual carriageway was not 5.5 metres wide or not adequate for two cars to pass each other with some room for manoeuvring in an emergency. The fact that the evidence was given by Senior Constable Metcher whose job it is to attend to road accidents, make observations, take measurements and make estimates, also persuades me that this is reliable evidence.
I accordingly find that the width of the dual carriageway was about 5 metres or less, and not as much as 5.5 metres.
There is no indication on the photographs, Exhibits 1 to 3 of any signs indicating to pedestrians where to cross the road. The ramp in front of the health food shop where Mr Read said a sign would have been placed telling pedestrians to cross at that point is clearly visible on Exhibit 2, but shows no such sign.
I also do not find Mr Read's evidence helpful with regard to the accident that he observed. His recollection that the plaintiff was walking from the western side of Naturaliste Terrace to the eastern side with his back to the Caltex garage is contrary to what the plaintiff and the first defendant said. Mr Read may only have seen the plaintiff at the very moment when the collision occurred and it is possible that in grappling with his mobile phone the plaintiff may have bent down to some extent. It is difficult to reconcile why Mr Read thought that he saw the plaintiff from behind, whereas the plaintiff says that he was first struck on his right knee and forearm. Mr Read was clearly a fair distance away from where the collision occurred and said himself that he did not see the plaintiff at the point of collision because of the barriers and the car which obscured his view.

Mr Read further said that the vehicle of the first defendant did not seem to swerve at all. It would have been difficult for Mr Read to see from a distance whether the first defendant's vehicle swerved slightly. I accept the first defendant's evidence in this regard, who said that he swerved a little. This is also in line with the probabilities of the case, because the first defendant is likely to have instinctively turned his steering wheel a little when he saw the plaintiff a couple of metres prior to the collision.

The first defendant's duty of care and breach

It is generally accepted that a driver of a vehicle owes other users of the road a duty of care to take steps to prevent reasonably foreseeable injury to such other users. The content of this duty requires that the driver of a vehicle drive with that degree of skill and care to be expected of a competent and experienced driver: Nettleship v Weston [1971] 2 QB 691.
The duty of care is owed to all foreseeable users of the road, including inattentive pedestrians: March v E & M H Stramare Pty Ltd & Anor (1991) 171 CLR 506 at 520 per Deane J and Alexander v Manley (2004) 29 WAR 194 at [50].
In assessing whether there has been a breach of the duty of care, the court first of all has to decide whether a reasonable man in the position of the driver would have foreseen that his conduct involved a risk of injury to the plaintiff: Wyong Shire Council v Shirt (1979-1980) 146 CLR 40 at 47. If the collision and injury was foreseeable a court has to consider whether the response of the driver to the risk was in accordance with the standard of a reasonable person in the driver's position. Mason J in Wyong Shire Council v Shirt (supra) at 47-48, explained the relevant factors to be taken into account in making this assessment in an often quoted passage as follows:
"The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position".
One of the factors referred to by Mason J in this passage is the extent of the damage. In the case of a driver of a vehicle who causes injury to a pedestrian, the extent of injury to the pedestrian is likely to be great. This is an important factor to take into consideration when assessing the standard of care required from a driver of a vehicle. In Stocks v Baldwin (1996) 24 MVR 416 at 418, Mahoney P pointed out the importance of the likely extent of the damage in the case of a collision between a vehicle and a pedestrian as follows:
"I have stressed that the reasonable person would accept that it is not the duty of a driver so to drive that there is no foreseeable risk of injury to others. To think otherwise would be to ignore the realities of city life. But it is not to be taken from what I have said that risks may be ignored. In the 'balancing' process to which Mason J referred, at least four things are to be borne in mind: the extent of the damage that may be done by a driver to a pedestrian; the degree of likelihood that a pedestrian will suddenly come into the path of an ongoing vehicle; the consequent extent of the precautions which a driver must take against that eventuality; and the extent of what a driver is able to do when confronted with such a danger.
The damage which a driver may do to a pedestrian is great: the injuries suffered by the present plaintiff show this. This is an important matter when deciding what a driver must do. The inconvenience of driving slower is to be measured against, inter alia, what may be done to a pedestrian if the driver's estimate of the risk is wrong.
Pedestrians sometimes act carelessly. I do not mean by this that they do so more often than not. But, in my opinion, they do so with sufficient frequency that a prudent driver would take account of it. The likelihood of that occurring is not a 'far‑fetched or fanciful risk' which is to be put aside or discounted. It is something which occurs often enough for the prudent driver to foresee it and take it into account."
The description of the standard of care required by a driver towards a pedestrian in Stocks v Baldwin (supra) was adopted by the Court of Appeal of NSW in Yu v Yu (1998) 26 MVR 509 at 517 and in Schieb v Abbott (1999) 27 MVR 285 at 287. A similar finding regarding the standard of care expected of a driver was made in Walker v McCall (1994-1995) 20 MVR 146 at 149 as follows:
"These authorities clearly establish the proposition that the driver of a vehicle, which is capable of inflicting serious damage in the event of a collision, bears a high duty of care. In situations in which it is foreseeable that pedestrians may be present there is a duty to maintain considerable vigilance and to drive in a manner which will ensure that the driver retains the ability to react appropriately in an emergency situation. The driver of a motor vehicle must bear in mind the possibility that, where pedestrians are likely to be present, those persons may not always act predicably."
The principles cited above do not mean that a driver of a vehicle has a higher duty of care than a pedestrian. It all depends on whether in the circumstances the driver and/or the pedestrian deviated from the required standard of care. This was emphasised by Windeyer J in Teubner v Humble (1962-1963) 108 CLR 491 at 504 as follows:
"I would say only that the statement that, as he put it, the motorist and the pedestrian are on different planes in respect of negligence, is, I think, likely to mislead. If it means only that the degree of care that must be exercised in any operation varies with the risk involved, this goes without saying. The question is one of fact. I know of no relevant rule of law except that a man driving a motor car must act as a reasonable and prudent man driving a motor car would act in the circumstances: and a pedestrian must act as would a reasonable and prudent pedestrian in the circumstances. Whether or not either has done or failed to do so is essentially a question of fact. A motor car does not become anything different from what it is by calling it 'a lethal weapon'. Doing so may bring home, if it be not sufficiently obvious, that if the driver of a motor car does not drive carefully he may kill somebody: whereas the carelessness of a pedestrian is carelessness for his own safety rather than a disregard of the safety of others. But when both are at fault the question is how far in the circumstances did the motorist depart from the standard of care of a reasonable man driving a motor car, and the pedestrian from the standard of care of a reasonable pedestrian."
The driver of a vehicle in a busy street is entitled to act on the assumption that pedestrians whom he or she is approaching and who have the appearance of normal adults will take normal precautions for their own safety, unless there is something to indicate the contrary: Bold v Reed [2005] WASCA 165 at [23].
The first defendant said in evidence that it was a busy time, being 5:00 pm on a Friday night, with lots of vehicles and pedestrians in the vicinity. There were shops on either side of the section of Naturaliste Terrace where the road works were in progress. The first defendant was familiar with the area as he was working for Dunsborough Galleries which is situated on a side street just off that particular section of Naturaliste Terrace. The first defendant could clearly see that road works were taking place and that the usual dual carriageway had been considerably narrowed by a set of barriers on either side. Further, it was a particularly windy day. It must also have been obvious to the first defendant that no particular arrangement, such as a zebra crossing, had been made for pedestrians to cross the dual carriageway.
In light of these circumstances it was reasonably foreseeable to the first defendant that pedestrians might scurry across the road in a hurry to get to the shops at the last minute or from the shops to their cars or on their way home, bracing against the wind. The mere fact that it was such a busy time with a lot of vehicular and pedestrian traffic together with the fact that road works were taking place should have placed the first defendant on alert and required particular watchfulness as regards pedestrians near or on the road. The fact that the dual carriageway had been considerably narrowed by a set of barriers on either side and that vehicles were forced to drive very close to these barriers created a situation which did not allow for a clear, open and orderly overview of the road surface and the immediate areas on either side. Under those circumstances the first defendant should have been particularly alert to keep a proper lookout.
In my view the first defendant did not keep a proper lookout. He said in evidence that he proceeded approximately 50 metres down Naturaliste Terrace before the collision, but only saw the plaintiff about 2 metres prior to the impact. I have found that the plaintiff was standing next to the last barrier in the gap waiting to cross the dual carriageway when his mobile phone and papers started slipping and he moved forward in an attempt to retrieve his mobile phone. If the first defendant had kept a proper lookout he would have seen the plaintiff standing next to the last barrier, very close to the surface of the road on which the first defendant was about to travel. Further, the plaintiff was on the evidence of all witnesses balancing a stack of files and papers, presumably bracing against the wind and not looking in the direction of the first defendant's vehicle which was approaching the plaintiff. These circumstances in themselves should have caused the first defendant to slow down and to keep an eye on the plaintiff standing so very close to the road.
In addition, if the first defendant had been keeping a proper lookout, he would have seen the plaintiff starting to loose his grip on the items in his arms and moving from a stable position. This may only have happened in the very last few seconds before the collision. However, if the first defendant had noticed the plaintiff standing so close to the road surface at an earlier stage while driving down Naturaliste Terrace, had slowed down and had kept him in his vision, the first defendant would have been likely to have been able to take more effective evasive action. The first defendant would have been likely to have been able to slam on his brakes as soon as he saw the plaintiff grappling with his possessions and out of balance and likely to have been able to swerve at an earlier stage. All of these measures are likely to have at least reduced the extent of the impact of the collision, if not avoided it.
Instead, what happened is that the first defendant did not see the plaintiff until the very last moment when it was too late to do anything but swerve a little. I do not accept the first defendant’s evidence that he saw the plaintiff walking from about 2 or 1.5 metres on the left hand side of the barriers and that the plaintiff kept walking straight through a small opening between two barriers into the road without stopping or looking left or right. Such conduct by the plaintiff appears to me to be improbable. It means that the plaintiff would have had to totally ignore the set of barriers and walk out into the roadway as if the barriers were non‑existent and without looking left and right. Further, if the first defendant first saw the plaintiff in a position 2 or 1.5 metres on the left hand side of the barriers walking with determination and not looking in the first defendant’s direction, the first defendant should have slammed on his brakes at that stage.
The first defendant’s statement made to the plaintiff immediately after the collision to the effect that he did not see the plaintiff is most likely a reflection of what in fact happened.
In my view it was a breach of the standard of care required of the first defendant that he was not more vigilant under the difficult road conditions pertaining on that particular section of Naturaliste Terrace that Friday evening and did not keep a proper lookout for pedestrians who were likely to cross the road. If the first defendant had seen the plaintiff at an earlier stage, he would have slowed down, kept the plaintiff in his vision and reacted immediately once the plaintiff lost his balance and stepped into the roadway.
Counsel for the first defendant invited the court to follow the decision in Derrick v Cheung (2001) 181 ALR 301. In that case the High Court overturned the decision of the Court of Appeal of NSW (which had upheld the judgment by the trial court) and found that the driver of a motor vehicle did not breach her duty of care when she collided with a small child who darted onto the roadway from between parked cars. In my view the facts of this case are entirely different.
There is no indication that the plaintiff standing next to the barriers was not visible to a driver of a vehicle progressing down Naturaliste Terrace. On the photographs the barriers appear to be not more than approximately waist height. I notice that the first photograph on Exhibit 3 indicates that the barriers viewed side on, in other words from the perspective of a driver progressing down Naturaliste Terrace, form a waist height obstruction to a clear view. I also accept that the barriers with their sandbags and the parked cars and pedestrians behind the barriers in addition to cars approaching from the front on a narrow dual carriageway would have created a busy and disorderly picture. However, this was the more reason for the first defendant to keep a very careful lookout.
It is possible that the plaintiff may have bent down to his knees in trying to retrieve the mobile phone and he may have been obscured by the barriers at that very moment. However, this would only have happened during the very last few seconds prior to the collision and there is no reason why the first defendant could not have seen the plaintiff standing next to the barriers at a much earlier stage.
I have found that the plaintiff was standing at the gap between the barriers waiting to cross the dual carriageway just prior to the accident. In my view nothing much turns on the issue whether the plaintiff stood in the gap or in one of the smaller openings between two individual barriers. In both instances he would have been equally visible to the first defendant.

The second defendant’s duty of care and breach

Since the decision by the High Court in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 the distinction between acts of nonfeasance and misfeasance by highway authorities no longer plays a role. The duty of care of authorities who have statutory powers to design or construct roads, or carry out works or repairs upon them, is now determined by the ordinary principles pertaining to a duty of care in tort. The duty of care of such an authority in respect of the state of a roadway was described by Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (supra) at [150] as follows:
"Where the state of a roadway, whether from design, construction, works or non‑repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist."
As regards the particular duty of a local authority in the performance of road works, their Honours held the following at [159] – [160]:
"The discharge of the duty involves the taking by the authority of reasonable steps to prevent there remaining a source of risk which gives rise to a foreseeable risk of harm. Such a risk of harm may arise from a failure to repair a road or its surface, from the creation of conditions during or as a result of repairs or works, from a failure to remove unsafe items in or near a road, or from the placing of items upon a road which create a danger, or the removal of items which protect against danger.
In dealing with questions of breach of duty, whilst there is to be taken into account as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness', a proper starting point may be the proposition that the persons using the road will themselves take ordinary care." (Footnotes omitted)."
Their Honours further held at [151] that in assessing the appropriate standard of care of an authority charged with the design, construction or maintenance of roads the statement by Mason J in Wyong Shire Council v Shirt (supra) was applicable. Their Honours held as follows in this regard:
"The perception of the response by the authority calls for, to adapt the statement by Mason J in Wyong Shire Council v Shirt, a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case." (Footnotes omitted.)
The second defendant is clearly a public authority. No evidence was placed before the court of the statutory provisions pursuant to which the second defendant had the power and responsibility to carry out the road works in Naturaliste Terrace at the time of the accident. It seemed to be common cause between the parties that the second defendant had responsibility for those road works. Mr Read, who gave evidence for the second defendant, said that at the time of the accident he was employed by the second defendant as a worker and that because he was the most experienced of the workers assigned to do the road works in Naturaliste Terrace he was the one that would have told the other workers where to place the barriers.
As this does not appear to have been an issue between the parties, I accept that the second defendant was responsible for the manner in which the road works were carried out in Naturaliste Terrace at the time of the accident and had the power and authority to direct traffic flow through and around the road works by creating detours, erecting barriers and signage as provided for in Australian Standard 1742.3‑1996.
Mr Klyne gave evidence that the Commissioner for Main Roads had directed that all road works had to comply with the Code of Practice and Australian Standard 1742.3. The evidence did not make it clear by which instrument and when the Commissioner for Main Roads had so directed.
In the absence of sufficient evidence that Australian Standard 1742.3‑1996 was binding on the second defendant as at the date of the accident, I do not accept that this is so. McHugh J in Jones v Bartlett (2000) 176 ALR 137 at [110] said the following in respect of the application of Australian Standards:
"The Standards are of general application. They are a guide to, but they cannot dictate, the standard of reasonable care required in the circumstances of individual cases".
On the other hand, I accept that the Australian Standards applicable at the time of the accident are a guide to the measures that would have been appropriate and should have been considered by the second defendant when directing vehicular and pedestrian traffic through or around the area of road works.

It was not clear what exactly the plaintiff’s case against the second defendant comprised. The particulars of negligence pleaded against the second defendant comprised the following:
"9.1The second defendant was negligent in that it:
9.1.1configured the barriers in such a way as to expose pedestrians to a risk of injury;
9.1.2failed to warn pedestrians to keep a safe distance from the carriageway formed by the barriers;
9.1.3failed to detour traffic away from the area where the road works were being carried out so as not to expose pedestrians to a risk of injury."
The evidence led in support of the latter two allegations of negligence was minimal. Mr Read was asked whether there were any warning signs confronting a pedestrian who wished to cross Naturaliste Terrace from the eastern side to the western side through the gap in the barriers. Mr Read replied that there were none and that a warning sign was not necessary, as the barriers in themselves were a sign indicating "no go". It was not clear where the warning sign should have been erected and what warning it should have contained. There was also no evidence by the plaintiff that he would have seen or heeded any such warning sign. Similarly, there was no evidence that it would have been the most appropriate step to have detoured traffic away from the area where the road works were being carried out other than by Senior Constable Metcher who was not qualified to express such an opinion.
Considerable evidence given during the trial was directed to the question whether the second defendant had put up signs telling pedestrians to cross the dual carriageway at either end of the road works and therefore directing pedestrians away from crossing the carriageway in the middle of the road works. It was neither pleaded by the second defendant in its defence that such signs had been erected nor was there a plea of negligence by the plaintiff regarding the failure to erect such signage. Counsel for the second defendant raised the issue of signage and put to the plaintiff that there was "a pedestrian way at either end of the barricade". The plaintiff answered that he did not notice any pedestrian way and that there were no signs to indicate this. The issue of signage was again raised by counsel for the second defendant and for the plaintiff when Mr Read gave evidence.
Neither the plaintiff nor the second defendant applied at the end of the evidence to have their pleadings amended in this regard. As the issue of signage directing pedestrians to the crossings at either end of the road works was ventilated by the parties in evidence, I should take this evidence into account in my judgment. In Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666 at 668, Stephen, Mason and Jacobs JJ held that it was not fatal if an application to amend had not been made or granted as long as the evidence in support of the amendment had been fully ventilated at the trial and that the jury should have been given directions on such evidence. This view was confirmed by Jacobs J in Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 at 294.
As indicated earlier, I have come to the conclusion that the evidence by Mr Read that he would have placed signs at both ends of the road works telling pedestrians to cross the road at those points is insufficient to persuade me that he or his co-workers actually did do so, particularly in light of the fact that the photographs do not show any such signs.
Accordingly, I am not satisfied that such a defence has been made out by the second defendant. However, I take into account in favour of the plaintiff that there was no signage which directed the plaintiff to safer crossings at either end of the road works.
This leaves the third allegation of negligence namely that the second defendant "configured the barriers in such a way as to expose pedestrians to a risk of injury". It was not clear what was covered by this allegation. In response to a question from the court, counsel for the plaintiff indicated that the plaintiff's case was not that the barriers should have been placed closer together so that the plaintiff would not have been able to walk through any of the smaller openings between two barriers. Counsel for the plaintiff indicated that the plaintiff's case was confined to the second defendant having breached its duty of care by placing the two sets of barriers too close to each other so that the dual carriageway was too narrow.
As indicated earlier, I accept the evidence of the plaintiff, Mr Baxter and Senior Constable Metcher who all estimated that the width of the double carriageway was 5 metres or less.
I accept Mr Klyne's evidence that the Australian Standard AS1742.3‑1996 was applicable as at the date of the accident and that this required a minimum width of 5.5 metres for a dual carriageway. Although clause 4.9.3 in this Standard only relates to work in residential streets, I accept Mr Klyne's evidence that this would have been a minimum requirement, as streets leading through a business centre clearly carry more and heavier traffic than a residential street.
I note that clause 2.3.3 of the Australian Standard AS1742.3‑1996 provides that passage of traffic through a work area should only be permitted where both the traffic and the work can be adequately controlled. Clause 2.2.2 requires that there be planning of traffic flow and/or re-routing through or around road works. One of the matters to be considered at the planning stage is the level of traffic from which is determined the amount of road space which should remain open. The planning also requires that provisions be made for pedestrians. Clause 2.3.7 provides that where pedestrians have to cross a road within a work site, they shall be provided with and directed to suitably constructed and protected temporary footpaths and crossing points or formal pedestrian crossings.
I note that clause 3.8.3 provides that barrier boards should not be used for delineation purposes and should not be placed parallel to the direction of traffic flow, unless erected 4 metres or more clear of traffic. Clause 3.9.1 provides that traffic cones and temporary bollards should be used on short‑term works to define the traffic path through or past the work area.
The issue that barrier boards should not have been used for delineation purposes unless erected 4 metres or more clear of traffic was not put to Mr Read and counsel for the plaintiff did not rely on these clauses in his submissions, although the relevant extracts of Australian Standard AS1742.3‑1996 were tendered as part of the report by Mr Klyne. This issue is arguably covered by the particular of negligence which alleges that the second defendant "configured the barriers in such a way as to expose pedestrians to a risk of injury".
No planning which took into account the extent of traffic flow, the amount of road space required and the provision of safe crossings for pedestrians appears to have taken place in respect of the road works carried out by the second defendant in Naturaliste Terrace at the time of the accident. Mr Read gave evidence that in 1999 it was not practice to create a formal traffic management plan prior to embarking upon road works. He said in those days nothing was put on paper but "you sort of designed it each day to what you wanted".
The fact that the second defendant did not create a formal written traffic management plan is not fatal to its defence, however, the second defendant certainly had a duty of care to consider, even if informally, the volume of traffic passing through the road works area, the number of pedestrians usually crossing the road within the road works area, whether the vehicular and/or pedestrian traffic should be re-routed away from the road works area, the adequacy of the width allocated for the dual carriageway, the suitability of the use of barriers, their safe positioning in respect of vehicular and pedestrian traffic and the need for the creation of safe crossing points for pedestrians. These requirements are provided for in the Australian Standard AS1742.3‑1996 and flow in any event from a common sense assessment of what the second defendant was required to do to ensure that vehicles and pedestrians were not exposed to the risk of damage or injury.
The evidence by Mr Read indicates that there was no proper consideration of any of these aspects. It appears that Mr Read and his co‑workers just decided to allow vehicular and pedestrian traffic in the area of the road works and demarcated an area for the dual carriageway by erecting two sets of barriers. It does not appear that the width of the dual carriageway was properly considered or measured. As I have found that the dual carriageway was about 5 metres wide or less, this would have required any vehicle to travel very close to one set of barriers in order to permit a vehicle from the opposite direction to pass. This allowed for virtually no margin of error for any driver of a vehicle and no space to manoeuvre in an emergency situation.
There appears to be no reason why the dual carriageway could not have been made wider and no reason was advanced by Mr Read. Photograph 1 on Exhibit 3 seems to show space on the left hand side of the barriers in front of the bakery and the health food store which could have been taken up for a wider roadway.
The fact that a set of barriers had been used on the eastern side of Naturaliste Terrace to delineate the dual carriageway with a gap in the middle of the barriers was, in the absence of any signage telling pedestrians otherwise, an invitation for pedestrians to cross the road at the gap between the barriers. On the photographs the smaller openings between the individual barriers on the western side of Naturaliste Terrace appear to be substantial and easy for pedestrians to walk through. There seems to be no reason why the individual barriers would have been spaced out less on the day of the accident than on the day that the photographs were taken. Further, Mr Baxter and Senior Constable Metcher gave evidence that pedestrians had moved the barriers out of alignment on the day of the accident. The set of barriers on the western side therefore did not serve as a clear indication that pedestrians were not meant to walk from the parking area on the eastern side to the shops on the western side by crossing at the level of the gap and walking through an opening in the barriers on the western side. On the photographs the set of barriers provide a clear demarcation for the dual carriageway and therefore for vehicles, but the barriers in themselves do not indicate that pedestrians are not meant to walk through between them.
Mr Read said in evidence that it would have been clear to any pedestrian wishing to cross from the eastern side of Naturaliste Terrace to the western side that there was hot mixing being carried out on the western side and that a pedestrian would get wet tar on his or her shoes. However, it is apparent from the second photograph on Exhibit 3 that the area between the Caltex garage and the hardware store (which Mr Baxter said was off the photograph to the right) covers a substantial distance and at the time of the accident the hot mixing had moved closer to the southern end where the Caltex garage was.
In my view there was no indication by reason of the placing of the two sets of barriers, which told pedestrians not to cross at the gap or through any of the openings formed between the individual barriers. To any pedestrian the barriers must have appeared to be a demarcation of the road surface, but not as indicating a no-go area for pedestrians. If, for example, continuous tape or bunting had been stretched across the line of the barriers, which would have prevented pedestrians from walking through the openings in the barriers, a different message would have been sent.
I accordingly find that the second defendant has not made out a defence that the two sets of barriers in themselves were a sufficient warning to pedestrians not to cross the road where the barriers had been set up. Further, as I have found, there was no signage indicating to pedestrians that they should only cross the dual carriageway at either end of the set of barriers.
The configuration of the narrow dual carriageway, demarcated by barriers with adequate gaps for pedestrians to pass through and no indication that this was not a safe route allowed for a situation where pedestrians would wait to cross the dual carriageway at the level of the barriers with vehicles forced to pass very close to the barriers. There was no kerb indicating to pedestrians the strict demarcation between pedestrian territory and road surface dominated by vehicular traffic.
All of this may not have been a problem if the dual carriageway was wide enough to allow vehicles to travel at a safe distance from the barriers and from any pedestrians standing at the level of the barriers waiting to cross the road. The fundamental breach of the second defendant’s duty of care was its failure to ensure that the width of the dual carriageway was at least 5.5 metres or more.
Accordingly, I find that the second defendant breached its duty of care to the plaintiff by setting up the dual carriageway to be only 5 metres or less, by using barriers to demarcate the dual carriageway which invited pedestrians to stand at the very edge of the dual carriageway while waiting to cross the road and by not putting up any signage indicating to pedestrians to cross the dual carriageway at either end of the road works and the set of barriers.

Contributory Negligence

Both defendants pleaded that the plaintiff contributed to the injury suffered by him by his own negligence. I have referred earlier to the allegations made by each defendant in this regard.
The concept of contributory negligence and the standard of care required of a plaintiff have been succinctly summarised by Mason J in Commissioner of Railways (Qld) v Ruprecht (1979) 142 CLR 563 at 570 as follows:
"Contributory negligence differs from negligence. There is no duty of care owed to another person (Nance v British Columbia Electric Railway Co. Ltd); and contributory negligence involves conduct which exposes the actor to the risk of injury without necessarily exposing others to risk. None the less it has been repeatedly asserted that the standard of care in contributory negligence, like the standard of care in negligence, depends on foreseeability and is that of the reasonable and prudent man, so that a defendant is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury – see eg Sungravure Pty Ltd v Meani." (Footnotes omitted).
Whether a plaintiff acted as a reasonable person must be determined in every case in the light of all the circumstances: Sungravure Pty Ltd v Meani (1964) 110 CLR 24 at 37. As part of the totality of all the circumstances it must be considered whether a plaintiff exhibited some temporary inadvertence to danger or some lapse of attention which was not incompatible with the conduct of a prudent and reasonable man. Windeyer J in Sungravure v Meani (supra) held, in the context of an employee working at printing works, that a court should consider whether:
"… inattention bread of familiarity and repetition, the urgency of the task, the man’s preoccupation with the matter in hand, and other prevailing conditions …. caused some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure from the highest degree of circumspection, excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man."
On the other hand, Mason J in Commissioner of Railways v Ruprecht (supra) stated that Windeyer J in Sungravure v Meani (supra) was careful to point out that:
"… thoughtlessness and inadvertence on the one hand and negligence on the other hand are not mutually exclusive categories and that an inadvertent or thoughtless act may also amount to a negligent act for the very reason that it is done without thought for, or consideration of, the consequences that may follow from the doing of it."
The question whether a plaintiff was guilty of contributory negligence has to be decided on objective standards and not on the basis of the plaintiff’s idiosyncrasies or state of mind at the time: Sungravure v Meani (supra) at 38 and Joslyn v Berryman (2003) 77 ALJR 1233 at [32] – [35].
In the context of an employee's liability for contributory negligence, the High Court held in Commissioner of Railways v Ruprecht (supra) at 577 that there must be an element of wilful misconduct by the employee before there can be a finding of contributory negligence. Murphy J expressed this view as follows:
"An employee should not be held guilty of contributory negligence unless when he acted (or failed to act) this was done with full appreciation of the danger. Even then, it should not be regarded as contributory negligence if it was done to advance the employer’s interests. This means that there must be an element of wilful misconduct by the employee. This approach is reflected in the cases which show that carelessness by an employee due to confusion, fatigue or natural slackening of attention, or preoccupation in what he is doing, is not to be regarded as contributory negligence (see Halley's Case; Carlyle v Commissioner for Railways; Flower v Ebbw Vale Steel, Iron & Coal Co Ltd; Caswell v Powell Duffryn Associated Collieries Ltd." (Footnotes omitted).
In Czatyrko v Edith Cowan University (2005) 79 ALJR 839, the High Court held that the Full Court had erred in finding the plaintiff guilty of contributory negligence of 70 per cent. In a joint judgment the High Court held that the plaintiff was not guilty of contributory negligence when he inadvertently stepped backwards from the back of a truck expecting to step on to a mechanical lifting platform which had in the meantime been lowered. The High Court said the following at [18]:
"Furthermore, both the appellant (plaintiff) and [his co‑worker] were under pressure from their supervisor to complete the job promptly. The work was repetitive. In all of these circumstances it presented a fertile field for inadvertence. The onus of proving contributory negligence lay upon the respondent. This it failed to do in this case. The appellant's attempt to step on to the platform in the mistaken belief that it was still raised, and in an effort to finish loading the truck, was the product of nothing more than 'mere inadvertence, inattention or misjudgment'. It was not a remote risk that the appellant might step back without looking behind him. His actions were neither deliberate, intentional, nor in disregard of a direction or order from the respondent. No finding of contributory negligence should have been made."
However, as stated in Sungravure v Meani (supra) whether a person is guilty of contributory negligence must be determined in every case in the light of all the circumstances. In both Commissioner of Railways v Ruprecht (supra) and Czatryko v Edith Cowan University (supra) the plaintiff followed a system of work established by his employer and his inadvertence resulted from his concentration on the task at hand. In my view the circumstances in this case are different.
In this case the plaintiff was standing right next to the edge of the dual carriageway. He said in evidence that he was standing in the middle of the triangular supports for the metal plates on the barriers and in line with the metal plates. As the narrowness of the dual carriageway obliged vehicles to drive very close to the barriers, the plaintiff exposed himself to the risk that if anything might go wrong, such as a vehicle having to swerve towards the barriers or him losing his balance towards the road, he would find himself in the path of an oncoming vehicle. The plaintiff had earlier driven down the dual carriageway enclosed by the barriers and was aware of the narrowness of the road and how close he had to travel to the barriers. The plaintiff carried a stack of files with a mobile phone loose on top which was clearly not stable and he had to battle against the wind to keep his load in position. This situation made it even more dangerous for him to stand so close to the road surface.

I am further of the view that in this case the plaintiff's temporary inadvertence to danger was not excusable conduct of a prudent and reasonable man. If a prudent and reasonable man stands on the very edge of a kerb next to a busy street and drops an item he is carrying onto the roadway, it would not be prudent and reasonable conduct for him to reach for the item dropped without looking again whether traffic was approaching. I accept that reaching for the mobile phone which was about to fall was an instinctive reaction, but the plaintiff should have been aware of how close he was standing to the road surface and that there was no margin for any movement towards the road surface in the position that he had chosen to stand in. In my view the plaintiff did not take reasonable care for his own safety.

Causation

I have found a breach of the duty of care by each of the defendants and that the plaintiff did not take reasonable care for his own safety. The question is whether the respective breach of duty of the defendants and the plaintiff's lack of care caused or materially contributed to the accident. Kirby J expressed the requirement for causation as follows in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at [134]:
"Where a breach of a relevant duty of care is shown, it is still necessary for a plaintiff to prove, on the balance of probabilities, that such breach caused or materially contributed to the damage. This means that the plaintiff must show that, if the defendant had fulfilled its duty, as defined, doing so would have resulted in the avoidance of the plaintiff’s damage and loss. Necessarily, the question is hypothetical. It calls for a consideration of what might have been if certain things had been done because, by definition, they were not done and that is the plaintiff’s complaint." (Footnotes omitted).
It is sufficient if the plaintiff can show that the exercise of reasonable care by the defendants would have avoided, or reduced the extent of his injury: Laybutt v Glover Gibbs Pty Ltd t/as Balfours NSW Pty Ltd [2005] HCA 56, 29th September 2005, per McHugh J at [10].
In making the assessment whether a particular breach made a material contribution to the injury, the first question is to determine whether the particular breach had a role in the happening of the accident. Hayne J stated this principle in Pledge v Roads & Traffic Authority (2004) 78 ALJR 572 at [10] as follows:
"The questions that are relevant to legal responsibility are first, whether, as a matter of history, the particular acts or omissions under consideration (here the acts or omissions which led to the presence of the foliage, and the parking bays, and the absence of warnings signs) did have a role in the happening of the accident. It is necessary then to examine the role that is identified by reference to the purpose of the inquiry – the attribution of legal responsibility. It is at this second level of inquiry that it may be necessary to ask whether, for some policy reason, the person responsible for that circumstance should nevertheless be held not liable. But that kind of policy inquiry apart, it is necessary to identify the nature of the role which the conduct in question played in bringing about the damage suffered." (Footnotes omitted).
Hayne J further held at [15] that:
"The role which a particular act or omission played in the occurrence of an event can often be identified by asking what would have happened if the act or omission had not occurred. This kind of counterfactual inquiry may not always be easy."
The role played by the first defendant's failure to keep a proper lookout is readily determined. As indicated earlier, if the first defendant had kept a proper lookout and had seen the plaintiff standing very close to the road surface, carrying a stack of files, bracing against the wind and not looking in the direction of the first defendant's approaching vehicle, it is likely that the first defendant would have slowed down as he was approaching the plaintiff. Further, if the first defendant had seen the plaintiff starting to grapple with the items in his hand and moving from his stationary position, it is likely that the first defendant would have applied his brakes and swerved a few seconds earlier than he did. Whether these precautionary measures would have avoided the accident is hypothetical and cannot be determined with certainty. However, in my view it is likely that the extent of the injury to the plaintiff would have been less, if not totally avoided, if the first defendant had kept a proper lookout.
Accordingly, I find the first defendant liable for the injuries suffered by the plaintiff as a result of the accident.
The second defendant's breach of its duty of care lies fundamentally in its failure to provide for a dual carriageway that was at least 5.5 metres wide and allowed a driver some leeway to swerve in case of an emergency. The second defendant's conduct in putting up a set of barriers which were so close to the path which vehicles were forced to drive, also meant that pedestrians were likely to stand just inside or in line with those barriers and therefore acutely close to the passing vehicles.
It is difficult to say what would have happened if the dual carriageway had been 1 or only ½ metre wider. However, in my view it is likely that the first defendant would not have driven so close to the set of barriers on his left hand side and it is likely that he would have swerved his vehicle to a greater degree if there was more road space available to do so. There was insufficient evidence before this court to determine whether these two factors would have avoided the collision. However, dealing with a hypothetical situation as best as I can, I am of the view that it is likely that if the road surface had been wider and/or the barriers had not been positioned at the very edge of the designated road surface the accident would not have occurred or the plaintiff would not have suffered his injury to the same extent.
Accordingly, I find the second defendant liable for the injuries suffered by the plaintiff as a result of the accident.
On the available evidence I am unable to say whether the fact that there were no signs indicating to the plaintiff that he should cross the road at the end of the road works and the sets of barriers made a contribution to the causation of the accident. It was not clear where exactly those signs were meant to have been set up. Mr Read said that they would have been set up near the ramp in the sidewalk outside the health food store and near the intersection of Naturaliste Terrace with Dunn Bay Road. However, it is not clear that the plaintiff in alighting from his vehicle would necessarily have seen any such sign indicating to pedestrians to cross at that point. Further, there was no evidence whether the plaintiff would have heeded such instructions.
Accordingly, I do not rely on the second defendant's breach of its duty of care to put up signs as a contributing factor to the causation of the accident.
In my view the plaintiff's contributory negligence also made a material contribution to the collision. If the plaintiff had not been standing so very close to the edge of the road surface and/or had not moved forward to catch his mobile phone the accident would not have occurred or, at least, the plaintiff would not have suffered the same extent of injury.

Apportionment of Liability

In apportioning responsibility the court has to way up the culpability of all the relevant parties, that is the degree of departure from the standard of care of the reasonable man which has been exhibited, as well as the role that the negligent conduct of each party played in the causation of the accident: Pennington v Norris (1956) 96 CLR 10 at 16 and Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494.
In my view the plaintiff’s culpability was less than that of the respective defendants. Firstly, the fact that the set of barriers was used to demarcate the dual carriageway caused the plaintiff to stand in such close proximity to passing vehicular traffic. The positioning of the barriers "invited" the plaintiff to stand at the level of the set of barriers so that he could cross as speedily as possible once the roadway was clear.
I have come to the conclusion that the plaintiff's temporary inadvertence does not excuse him on the circumstances of this case from a finding of contributory negligence. However, when assessing culpability, in my view the plaintiff responded to a system for pedestrians crossing the road which had been set up or at least allowed by the second defendant. But for the barriers being erected so close to the road surface and the dual carriageway being so narrow, the plaintiff's momentary inattentiveness would not have had such serious results.
In my view the plaintiff should be held liable for 20 per cent contributory negligence.
The first defendant's failure to keep a proper lookout was conduct of a higher degree of culpability than that of the plaintiff. The first defendant knew that if his inattention led to a collision with a pedestrian, this could cause serious harm to the pedestrian. The first defendant was familiar with Naturaliste Terrace and how busy it was on a Friday evening at 5:00pm. He knew that road works were in progress and could see that the dual carriageway had been considerably narrowed. He should have applied utmost vigilance at the time.
It is also apparent that the first defendant's negligent conduct made a major contribution to the causation of the accident. If the first defendant had kept a proper lookout he was likely to have been able to reduce his speed, apply his brakes and swerve at an earlier stage.
I have already found that the first defendant is liable to the plaintiff for the damages arising from the plaintiff's injuries. As between the first defendant and the second defendant, the first defendant should be held liable for 40 per cent of the total damages to which the plaintiff is entitled after deduction of 20 per cent for the plaintiff's contributory negligence.
The second defendant also carried a higher degree of culpability than the plaintiff. It was the second defendant who set up a situation where the dual carriageway was very narrow which forced drivers of vehicles to drive very close to the set of barriers on either side and which allowed virtually no opportunity for swerving in an emergency situation. Further, by setting up the barriers on the very edge of the road surface the second defendant encouraged pedestrians to stand at the level of the barriers while waiting to cross the road. If the demarcation of the dual carriageway had not been designed and set up in this manner, the plaintiff would not have been placed in the position where his inadvertence contributed to the accident. Further, the first defendant would not have found himself in a position where he had to travel so close to the barriers and had no room to swerve.
On the available evidence it does not appear that the second defendant by its workers properly considered the implications and risks of setting up the barriers so close to the road surface and making the dual carriageway so narrow.
I have already found that the second defendant is liable to the plaintiff for the damages arising from the plaintiff's injuries. As between the second defendant and the first defendant, the second defendant should be liable for 60 per cent of the total damages to which the plaintiff is entitled after deduction of 20 per cent for contributory negligence.